What would you say if you were informed today that your every move for the past month had been monitored by the government? They had a record of the stores you shop at, the bars and restaurants you hang out in, and know to whose houses you visit. Did you make any embarrassing purchases? Do you have a friend who has had a history of criminal behavior and now the police may paint you guilty by association? This premise is not only plausible — it happens.
The Supreme Court recently heard arguments in a case called United States v. Jones where a man, Antoine Jones, was being tracked for twenty-eight days after police slipped a small, credit card-sized GPS device on his car without his knowledge, without his consent and most damning… without a warrant or oversight. At issue in this case was whether the Constitution allows police to put a tracking device on a car without either a warrant or the owner’s permission and whether the Constitution is violated when police use the tracking device to keep track of the car’s whereabouts. Both sides have strong arguments, and to firmly come down one way or the other is no easy task.
The position that Jones puts forward is a point of view that may be called intuitive or common sense, that being tracked without our knowledge is disturbing and not far removed from being stalked. As Justice Stephen G. Breyer said during the oral arguments, if the police win this case “then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movements of every citizen of the United States.”
George Washington University law professor Orin Kerr has his concerns, saying “untrammeled GPS monitoring is creepy and Orwellian.” And Ninth Circuit Judge Alex Kozinski, who was born in Romania and had two Holocaust survivors for parents, said it best when he said, “there is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of deja vu.” In short, even if 24-hour GPS monitoring is legal and Constitutional, it has a naturally repulsive character to it.
This gut feeling of “disturbia” is why Jones has a wide array of political support, from the right-leaning Cato Institute and Gun Owners of America to the more left-wing American Civil Liberties Union (ACLU). This seems to suggest the foundational issues of personal privacy and freedom from the government’s watchful eye are important to people of all political stripes.
You will always have the people who argue that if we have nothing to hide we should not fear such invasive surveillance. But that argument ignores the Constitutional issues. In Arizona v. Hicks (1987), the Court declared that a “search is a search, even if it happens to disclose nothing”. And the Fourth Amendment specifically says all searches must be “reasonable” — whether we have something to hide or not, the police have no authority to enter our private domain.
Yet, the precedent of the Court seems to fall in favor of the police. The case history of what constitutes a legal search would suggest that using GPS is not a violation of anyone’s rights. In United States v. Knotts (1983) it was established that, “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” The GPS device did not violate the suspect’s “reasonable expectation of privacy” because as Deputy U.S. Solicitor General Michael R. Dreeben said, “It doesn’t expose anything… that isn’t already exposed to public view for anyone who wanted to watch.”
The government’s argument is that if they wanted to devote the manpower, they could have an officer “tail” a suspect all day, every day. While the officer could not go inside houses, he would be able to drive anywhere that the suspect drives. Since the GPS unit was on a car and not hidden in Jones’ jacket, it only traveled on public streets. If the device was used to monitor a location inside a protected space, like a home, then a warrant would be clearly necessary for a search, as outlined in United States v. Karo (1984). But if the GPS is not different from what a group of officers could do, other than improving the efficiency, is it really unconstitutional to use it?
The solution to this problem is unfortunately not one that will be decided by the Supreme Court. The issue should not be whether or not police can monitor a vehicle in public, since we have already clearly established that they can. The issue should be whether or not they can attach a GPS unit to a vehicle in the first place. By modifying our personal property, whether for tracking us or not, can we not say the police are trespassing or tampering with our private domain?
This solution can and should be taken up by Congress. While few things get done in Congress these days (even fewer than ever!) this is an issue that clearly has broad support. Can police monitor our every move if they want to use their time doing so? Yes. Should they have the authority, without a warrant, to install devices in our vehicles? Absolutely not.